An Act To Amend The Code Of Corporations As A Result Of Directive 2009/109/ec As Regards Reporting And Documentation In The Case Of Mergers And Divisions (1) Obligations

Original Language Title: Loi modifiant le Code des sociétés à la suite de la Directive 2009/109/CE en ce qui concerne les obligations en matière de rapports et de documentation en cas de fusions ou de scissions (1)

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8 JANVIER 2012. - An Act to amend the Corporations Code as a result of Directive 2009/109/EC with respect to reporting and documentation obligations in the event of mergers or splits (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1er. - General provisions
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act transposes, among other things, Directive 2009/109/EC of the European Parliament and of the Council of 16 September 2009 amending Directives 77/91/EEC, 78/855/EEC and 82/891/EEC of the Council and Directive 2005/56/EC on reporting and documentation obligations in the event of mergers or scissions.
CHAPTER 2. - Forced transfer of securities
Art. 3. In section 513 of the Corporate Code, last amended by the Act of 1er April 2007, a paragraph 2/1 is inserted as follows:
“§ 2/1. When the offer of recovery intervenes for a merger by absorption made by an anonymous company that does not hold all but at least 90% of the shares and other titles conferring a right of vote to the general assembly in the absorbed anonymous society, the percentage referred to in § 1erParagraph 1erand § 2, paragraph 1er, is 90%.
The owner cannot indicate that he does not wish to give up his securities. "
CHAPTER 3. - Fusion by absorption
Art. 4. In section 693 of the same Code, the last paragraph is replaced by the following:
"At least six weeks before the general assembly to decide on the merger, the proposed merger must be filed by each of the companies to be merged at the office of the commercial court of the place of establishment of its respective head office and published either by extract in accordance with section 74 or by mention in accordance with section 75, which contains a hypertext link to a clean website. "
Art. 5. Article 694 of the same Code is supplemented by a paragraph written as follows:
"The report referred to in paragraph 1er is not required if all partners and holders of other titles conferring a voting right of each of the companies participating in the merger have so decided. "
Art. 6. In section 695 of the same Code, last amended by section 54 of the Act of 30 December 2009, the following amendments are made:
1° the current text will form § 1er;
2° Paragraph 6 is repealed;
3° in paragraph 7, becoming paragraph 6, the words "No declaration on the proposed merger, nor a report by the Commissioner, the business reviewer or the designated external auditor are required" are replaced by the words "This paragraph does not apply" and the word "shared shareholder" is replaced by the word "associated";
4° the article is supplemented by a § 2, written as follows:
“§2. If a report has been prepared in accordance with § 1er, sections 313, 423 or 602 do not apply to an absorbent company having the form of a private limited liability corporation, a limited liability cooperative corporation, a European corporation, a European cooperative corporation or anonymous corporation. "
Art. 7. Article 696 of the same Code is supplemented by a paragraph written as follows:
"The information referred to in paragraph 1er is not required if all partners and holders of other titles conferring a voting right of each of the companies participating in the merger have so decided. "
Art. 8. In section 697 of the same Code, last amended by article 13 of the Royal Decree of 28 November 2006, the following amendments are made:
1° in § 2, paragraph 1er, 2°, the words "if applicable" are inserted at the beginning of the sentence;
2° in § 2, paragraph 1er5°, the words "if applicable" are inserted at the beginning of the sentence;
3° § 2 is supplemented by two paragraphs written as follows:
"No accounting statement is required if the corporation publishes a semi-annual financial report referred to in section 13 of the Royal Decree of 14 November 2007 relating to the obligations of the issuers of financial instruments admitted to the negotiations on a regulated market and makes it available to shareholders in accordance with this paragraph.
No accounting statement is required if all partners and holders of the other titles conferring a right to vote at the general assembly of each of the companies participating in the merger have so decided. »;
§ 3 is supplemented by a paragraph written as follows:
"If an associate has individually, expressly and in writing accepted that the company provides the documents referred to in §§ 1er and 2 electronically, these copies can be sent by e-mail. »;
5° the article is supplemented by a § 4 written as follows:
“§4. If a company makes available to its website the documents referred to in § 2 free of charge for an uninterrupted period of one month beginning before the date of the general assembly called to decide on the merger project and not to be acquired before the end of that assembly, it shall not make available the documents referred to in § 2 to its head office.
§ 3 is not an application if the website offers the possibility to the partners, during the whole period referred to in § 2, to download and print the documents referred to in § 2. In such cases, the company makes these documents available to its headquarters so that they can be consulted by the partners.
The information must remain on the website for up to one month after the decision of the General Assembly to decide on the merger. "
Art. 9. Article 699 of the same Code is supplemented by § 6 as follows:
Ҥ 6. Where an anonymous corporation holds at least 90% but not all shares and other titles conferring a right to vote at the general assembly of the absorbed anonymous corporation, the approval of the merger by the general assembly of the absorbing corporation, as provided in the preceding paragraphs, is not required to the extent that the following conditions are met:
1° the advertisement of the proposed merger referred to in Article 693 shall be made, for the absorbent company, no later than six weeks before the date of the meeting of the General Assembly of the or of the absorbed companies called to decide on the proposed merger;
2° without prejudice to Article 697, each shareholder of the absorbing society has the right, at least one month before the date referred to in 1°, to take note of the documents referred to in Article 697 § 2 at the head office of the company.
In this case one or more shareholders of the absorbing company who hold shares representing 5% of the capital subscribed have the right to obtain the convocation of the general assembly of the absorbing company called to decide on the proposed merger. Actions without voting rights are not taken into account in calculating this percentage. "
CHAPTER 4. - Merger by constitution of a new society
Art. 10. In § 3 of Article 705 of the same Code, last amended by Article 14 of the Royal Decree of 28 November 2006, the following amendments are made:
1° in paragraph 1er, the words "Sections 444" are replaced by the words "If a report has been prepared in accordance with section 708, sections 444";
2° in paragraph 1er, the sentence "Articles 395, 399 and 402, 2°, do not apply to the limited liability cooperative corporation and the European cooperative corporation that are derived from the merger" is repealed;
3° a preambular paragraph is inserted between subparagraphs 1er and 2:
"If a report has been prepared in accordance with Article 708, Articles 395, 399 and 402, 2°, do not apply to the limited liability cooperative corporation and the European cooperative corporation that are derived from the merger. »;
4° in paragraph 2, becoming paragraph 3, the word "The" is replaced by the words "If a report has been prepared in accordance with section 708, the ones".
Art. 11. In section 706 of the same Code, the last paragraph is replaced by the following:
"At least six weeks before the general assembly to decide on the merger, the proposed merger must be filed by each of the companies to be merged at the office of the commercial court of the place of establishment of its respective head office and published either by extract in accordance with section 74 or by mention in accordance with section 75, which contains a hypertext link to a clean website. "
Art. 12. Article 707 of the same Code is supplemented by a paragraph written as follows:
"The report referred to in paragraph 1er is not required if all partners and holders of other titles conferring a voting right of each of the companies participating in the merger have so decided. "
Art. 13. In section 708, paragraph 6, of the same Code, last amended by section 55 of the Act of 30 December 2009, the words "No declaration on the proposed merger, nor a report by the Commissioner, the business reviewer or the designated external auditor are required" are replaced by the words "This section does not apply" and the word " shareholders" is replaced by the word "associated".
Art. 14. Article 709 of the same Code is supplemented by a paragraph written as follows:
"The information referred to in paragraph 1er is not required if all partners and holders of other titles conferring a voting right of each of the companies participating in the merger have so decided. "
Art. 15. In section 710 of the same Code, last amended by section 15 of the Royal Decree of 28 November 2006, the following amendments are made:
1° in § 2, paragraph 1er, 2°, the words "if applicable" are inserted at the beginning of the sentence;
2° in § 2, paragraph 1er5°, the words "if applicable" are inserted at the beginning of the sentence;
3° § 2 is supplemented by two paragraphs written as follows:
"No accounting statement is required if the corporation publishes a semi-annual financial report referred to in section 13 of the Royal Decree of 14 November 2007 relating to the obligations of the issuers of financial instruments admitted to the negotiations on a regulated market and makes it available to shareholders in accordance with this paragraph.
No accounting statement is required if all partners and holders of the other titles conferring a right to vote at the general assembly of each of the companies participating in the merger have so decided. »;
§ 3 is supplemented by a paragraph written as follows:
"If a partner has individually, expressly and in writing accepted that the company shall provide the information referred to in §§ 1er and 2 electronically, these copies can be sent by e-mail. »;
5° the article is supplemented by a § 4 written as follows:
“§4. If a company makes available to its website the documents referred to in § 2 free of charge for an uninterrupted period of one month beginning before the date of the general assembly called to decide on the merger project and not to be acquired before the end of that assembly, it shall not make available the documents referred to in § 2 to its head office.
§ 3 is not an application if the website offers the possibility to the partners, during the whole period referred to in § 2, to download and print the documents referred to in § 2. In such cases, the company makes these documents available to its headquarters so that they can be consulted by the partners.
The information must remain on the website for up to one month after the decision of the General Assembly to decide on the merger. "
CHAPTER 5. - Transactions similar to absorption fusion
Art. 16. In section 719 of the same Code, the last paragraph is replaced by the following:
"At least six weeks before the general assembly to decide on the merger, the proposed merger must be filed by each of the companies to be merged at the office of the commercial court of the place of establishment of its respective head office and published either by extract in accordance with section 74 or by mention in accordance with section 75, which contains a hypertext link to a clean website. »
Art. 17. In section 720 of the same Code, last amended by article 16 of the Royal Decree of 28 November 2006, the following amendments are made:
1° in § 2, paragraph 1er4°, the words "if applicable" are inserted at the beginning of the sentence;
2° § 2 is supplemented by a paragraph written as follows:
"No accounting statement is required if the corporation publishes a semi-annual financial report referred to in section 13 of the Royal Decree of 14 November 2007 relating to the obligations of the issuers of financial instruments admitted to the negotiations on a regulated market and makes it available to shareholders in accordance with this paragraph.
No accounting statement is required if all partners and holders of other titles conferring a right to vote at the general assembly of each of the companies participating in the merger have so decided. »;
3° § 3 is supplemented by a paragraph written as follows:
"If an associate has individually, expressly and in writing accepted that the company provides the documents referred to in §§ 1er and 2 electronically, these copies can be sent by e-mail. »;
4° the article is supplemented by a § 4 written as follows:
“§4. If a company makes available to its website the documents referred to in § 2 free of charge for an uninterrupted period of one month beginning before the date of the general assembly called to decide on the merger project and not to be acquired before the end of that assembly, it shall not make available the documents referred to in § 2 to its head office.
§ 3 is not an application if the website offers the possibility to the partners, during the whole period referred to in § 2, to download and print the documents referred to in § 2. In such cases, the company makes these documents available to its headquarters so that they can be consulted by the partners.
The information must remain on the website for up to one month after the decision of the General Assembly to decide on the merger. "
Art. 18. Article 722 of the same Code is supplemented by § 6 as follows:
Ҥ 6. The approval by the General Assembly of the anonymous company, as provided in the preceding paragraphs, is not required if the following conditions are met:
1° the advertisement of the proposed merger referred to in section 719 shall be made for each of the companies participating in the operation no later than six weeks before the take of effect of the absorption;
2° without prejudice to Article 720, each shareholder of the absorbing society has the right, at least one month before taking effect of the absorption, to take note of the documents mentioned in Article 720, § 2, at the head office of the company;
3° one or more shareholders of the absorbing company holding shares representing 5% of the capital subscribed have the right to convene the general assembly of the absorbing company called to decide on the merger project. Actions without voting rights are not taken into account in calculating this percentage. "
CHAPTER 6. - Scission by absorption
Art. 19. In section 728 of the same Code, the last paragraph is replaced by the following:
"At least six weeks before the general assembly called to decide on the split, the draft split shall be filed by each of the companies participating in the split at the office of the commercial court of the place of establishment of its respective head office and published either by extract in accordance with section 74 or by mention in accordance with section 75, which contains a hyperlink to a clean website. »
Art. 20. In section 730 of the same Code, last amended by section 17 of the Royal Decree of 28 November 2006, the last paragraph is repealed.
Art. 21. In section 731 of the same Code, last amended by section 56 of the Act of 30 December 2009, the following amendments are made:
1° the current text will form § 1er;
2° Paragraph 6 is repealed;
3° in paragraph 7, becoming paragraph 6, the words "No statement on the draft split, nor a report by the Commissioner, the business reviewer or the designated external accountant are required" are replaced by the words "This paragraph does not apply" and the word "shared" is replaced by the word "associated";
4° the article is supplemented by a § 2 written as follows:
“§2. If a report has been prepared in accordance with § 1er, sections 313, 423 or 602 do not apply to an absorbent company having the form of a private limited liability corporation, a limited liability cooperative corporation, a European corporation, a European cooperative corporation or anonymous corporation. "
Art. 22. In section 733 of the same Code, last amended by article 19 of the Royal Decree of 28 November 2006, the following amendments are made:
1° in § 2, paragraph 1er, 2°, the words "if applicable" are inserted at the beginning of the sentence;
2° in § 2, paragraph 1er5°, the words "if applicable" are inserted at the beginning of the sentence;
3° § 2 is supplemented by a paragraph written as follows:
"No accounting statement is required if the corporation publishes a semi-annual financial report referred to in section 13 of the Royal Decree of 14 November 2007 relating to the obligations of the issuers of financial instruments admitted to the negotiations on a regulated market and makes it available to shareholders in accordance with this paragraph. »;
§ 3 is supplemented by a paragraph written as follows:
"If an associate has individually, expressly and in writing accepted that the company provides the documents referred to in §§ 1er and 2 electronically, these copies can be sent by e-mail. »;
5° the article is supplemented by a § 4 written as follows:
“§4. If a company makes available the documents referred to in § 2 free of charge for an uninterrupted period of one month beginning before the date of the general assembly called for to decide on the draft split and not to be acquired before the end of this assembly, it shall not make available the documents referred to in § 2 to its head office.
§ 3 is not an application if the website offers the possibility to the partners, during the whole period referred to in § 2, to download and print the documents referred to in § 2. In such cases, the company makes these documents available to its headquarters so that they can be consulted by the partners.
The information must remain on the website for up to one month after the decision of the general assembly to decide on the split. "
Art. 23. In section 734 of the same Code, the words ", 731" are repealed.
Art. 24. In section 736 of the same Code, the following amendments are made:
1° in the Dutch text of § 2, the word "fuses" is replaced by the word "splitting";
2° the article is supplemented by a § 6 written as follows:
Ҥ 6. The general assembly of the split society shall not give approval if the beneficiary companies hold all the shares or shares of the split society and all other titles conferring a right to vote at the general assembly of the split society and if the following conditions are met:
1° the filing prescribed in section 728 shall take place for each of the companies participating in the split at least six weeks before the scission takes effect;
2° each partner of the companies participating in the split shall, at least one month before the scission takes effect, be aware of the documents referred to in Article 733, § 2, at the company's head office. For the rest, Article 731, § 1er, last paragraph, and article 733, paragraphs 2, 3 and 4, are applicable;
3° the information referred to in section 732 applies to all changes in the assets and liabilities since the date on which the draft split has been prepared. "
CHAPTER 7. - Scission by constitution of new companies
Art. 25. In the third paragraph of section 742 of the Code, last amended by article 20 of the Royal Decree of 28 November 2006, the following amendments are made:
1° to paragraph 1er, the words "Sections 444, last paragraph", are replaced by the words "If a report has been prepared in accordance with section 746, sections 444";
2° in the same paragraph, the first sentence is supplemented by the words "that are derived from the split";
3° in the same paragraph, the sentence "Articles 395, last paragraph, and 399 do not apply to the limited liability cooperative corporation and the European cooperative corporation that originate from the split" is repealed;
4° a paragraph to read is inserted between subparagraphs 1er and 2:
"If a report has been prepared in accordance with section 746, sections 395 and 399 do not apply to the limited liability cooperative corporation and the European cooperative corporation that are derived from the split. »;
5° to paragraph 2, becoming paragraph 3, the words "Articles 219, last paragraph", are replaced by the words "If a report has been prepared in accordance with Article 746, Items 219".
Art. 26. In section 743 of the same Code, the last paragraph is replaced by the following:
"At least six weeks before the general assembly called to decide on the split, the draft split shall be filed by each of the companies participating in the split at the office of the commercial court of the place of establishment of its respective head office and published either by extract in accordance with section 74 or by mention in accordance with section 75, which contains a hyperlink to a clean website. "
Art. 27. In section 745 of the same Code, last amended by section 21 of the Royal Decree of 28 November 2006, the last paragraph is replaced by the following:
"This section is not an application where the shares or shares of each of the new companies are attributed to the partners of the split corporation proportionally to their rights in the capital of that corporation. "
Art. 28. In section 746 of the same Code, last amended by section 57 of the Act of 30 December 2009, the following amendments are made:
1° paragraph 6 is repealed;
2° in paragraph 7, becoming paragraph 6, the words "No statement on the draft split, nor a report by the Commissioner, the business reviewer or the designated external auditor are required" are replaced by the words "This item does not apply" and the word "shared shareholder" is replaced by the word "associated";
3° the article is supplemented by a paragraph written as follows:
"This section is not an application where the shares or shares of each of the new companies are attributed to the partners of the split corporation proportionally to their rights in the capital of that corporation. "
Art. 29. Article 747 of the same Code is supplemented by a paragraph written as follows:
"This section is not an application where the shares or shares of each of the new companies are attributed to the partners of the split corporation proportionally to their rights in the capital of that corporation. "
Art. 30. In section 748 of the same Code, last amended by article 23 of the Royal Decree of 28 November 2006, the following amendments are made:
1° in § 2, paragraph 1er, 2°, the words "if applicable" are inserted at the beginning of the sentence;
2° in § 2, paragraph 1er5°, the words "if applicable" are inserted at the beginning of the sentence;
3° § 2 is supplemented by two paragraphs written as follows:
"No accounting statement is required if the corporation publishes a semi-annual financial report referred to in section 13 of the Royal Decree of 14 November 2007 relating to the obligations of the issuers of financial instruments admitted to the negotiations on a regulated market and makes it available to shareholders in accordance with this paragraph.
The 2° and 5° are not applied when the shares or shares of each of the new companies are assigned to the partners of the society scintillated proportionally to their rights in the capital of that society. »;
§ 3 is supplemented by a paragraph written as follows:
"If an associate has individually, expressly and in writing accepted that the company provides the documents referred to in §§ 1er and 2 electronically, these copies can be sent by e-mail. »;
5° the article is supplemented by a § 4 written as follows:
“§4. If a company makes available the documents referred to in § 2 free of charge for an uninterrupted period of one month beginning before the date of the general assembly called for to decide on the draft split and not to be acquired before the end of this assembly, it shall not make available the documents referred to in § 2 to its head office.
§ 3 is not an application if the website offers the possibility to the partners, during the whole period referred to in § 2, to download and print the documents referred to in § 2. In such cases, the company makes these documents available to its headquarters so that they can be consulted by the partners.
The information must remain on the website for up to one month after the decision of the general assembly to decide on the split. "
Art. 31. Article 749, paragraph 1er, in the same Code, the words ", 746" are repealed.
CHAPTER 8. - Cross-border mergers
Art. 32. A l'article 772/7, alinéa 1er, of the same Code, inserted by section 77 of the Act of 8 June 2008, the following amendments are made:
1° the word "respective" is inserted between the words "social seat" and the words ", by each company";
2° the words "by extract in accordance with Article 74" are replaced by the words "either by extract in accordance with Article 74 or by mention in accordance with Article 75, which contains a hypertext link to a clean website. "
CHAPTER 9. - Transitional provision
Art. 33. This Act applies to mergers or seals that are tabled in the Registry after this Act comes into force.
Given in Brussels on 8 January 2012.
ALBERT
By the King:
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2011-2012.
House of Representatives.
Documents. - Bill, 53-1849-001. - Amendments, 53-1849-002. - Report, 53-1849-003. - Text adopted by the Commission, 53-1849-004. - Text adopted in plenary and transmitted to the Senate, 53-1849-005.
Full report. - 1er December 2011.
Senate
Documents. - Project not referred to by the Senate, 5-1375-1.